The Torture Debate: Getting Beyond Dick and Nancy

By Edward Zelinsky

The torture debate has become its own form of torture. House Speaker Nancy Pelosi finds herself enmeshed in ongoing acrimony about what she knew and when she knew it. Former Vice President Dick Cheney has emerged as an outspoken defender of the Bush Administration’s interrogation policies. Unfortunately for him and his party, Vice President Cheney, like Speaker Pelosi, currently lacks credibility with much of the public.

Our public debate about torture will continue to be as unedifying as it is bitter until we move beyond the partisan counter charges and acknowledge some simple, albeit inconvenient, truths: In the wake of 9/11, we were scared – and justifiably so. In this environment, some practices took place which should not have occurred. The universal fear felt after the attack on the Twin Towers does not justify these improper practices. It does, however, explain them.

Though it was only eight years ago, it is difficult for many of us to recall the environment after the 2001 attack on the World Trade Center. That attack traumatized the United States. September 11, 2001 was, by some measures, the single bloodiest day in U.S. history. The general, and quite plausible, assumption was that the U.S. mainland would again be assaulted by terrorists. The overwhelming imperative, embraced by Republicans and Democrats alike, was to prevent or mitigate another 9/11-type onslaught.

It is now clear that the U.S. government did some things in the wake of 9/11 which it should not have been done. Federal agencies did these things, not because Americans are a bad or immoral people, but because we were frightened. Members of Congress, Democrats and Republicans alike, were informed of these practices and supported them – or at least acquiesced to them. Democrats today do not want to admit that they were complicit in these improper practices. Republicans do not want to admit that inappropriate practices occurred. Until we get past this unproductive posturing, we cannot have a serious and necessary national debate about the future.

In large measure, America’s response to 9/11 is cause for national pride. Despite the trauma of the World Trade Center attacks, there was nothing equivalent to the Red Scare of World War I or the World War II detention of Americans of Japanese descent. The spirit of McCarthyism did not reemerge after 9/11, in no small measure because President Bush carefully and consistently defined America’s battle as a fight against Islamic extremism, not against Islam’s believers.

Nevertheless, after the attacks on the Twin Towers, some things happened which should not have. Congressional Democrats and Republicans were informed and acquiesced. We need to explore these improper practices in a sober, careful way. Such an exploration must identify which practices crossed ethical and legal borderlines. Such an exploration must also help us understand how to deter such improper practices in the future while, at the same time, encouraging the aggressive protection of Americans and the American homeland. Such a measured debate will not interest the partisans determined to score political points. It will, however, be the way in which we pursue simultaneously our security and our national values.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.